This case concerned physician-assisted suicide in South Africa. The applicant, a 66-year-old highly educated, experienced lawyer with four children and a mother, had terminal stage 4 cancer with only a few weeks left to live and brought suit against various government ministries. He sought a declaratory order that a medical practitioner may end, or enable the plaintiff to end, his life by administration or provision of a lethal agent without incurring any civil, criminal or disciplinary liability. He requested the court to develop the common law so that such an order would be lawful and constitutional.

While highlighting that this question was better suited for the Legislature or the Constitutional Court, the Court granted the applicant his requests, breaking free of the precedents that had previously banned physician-assisted suicide.

Although there was no legislation to the effect, a number of precedents dating back to as early as 1971 had established that assisted suicide or active voluntary euthanasia was unlawful in South Africa. Pointing out that this position was established in the pre-Constitution period, the Court instead focused on the Constitution, which imposes obligations on the Court to “to promote the values … based on human dignity, equality and freedom,” to consider international law and foreign law in interpreting the Bill of Rights (S. 39(1)), and “to promote the spirit and purport the object of the Bill of Rights”when developing the common law in order to better reflect the social changes (S.39(2)). The Court affirmed the categorical importance of human dignity in South African jurisprudence, and concluded that banning assisted suicide would infringe upon the human dignity and other related rights of those affected under the Bill of Rights.

The Court relied heavily on a report from the South African Law Commission (Paper on Euthanasia and the Artificial Preservation of Life) that balanced the State’s duty to protect life with the individual’s right to end his or her life, primarily stemming from the rights to physical and psychological integrity and to dignity. The Paper suggested limiting physician-assisted suicide to the terminally ill who are mentally competent but are in extreme physical suffering and providing various safeguards. The Court also pointed out that there are at least eleven foreign countries where assisted suicide is legal and focused on a similar case from Canada, whose Charter of Rights is very similar to the South African Bill of Rights. The Canadian Supreme Court had recently ruled that the ban on physician-assisted dying violated the individual right to life, liberty and security of the person, and to equal treatment under the law (Carter v. Canada, 2015 SCC5). Banning the practice was invalid because it forced a competent adult with a grievous and irremediable medical condition to endure intolerable suffering even though that person had consented to the termination of his life.

“Certain safeguards were recommended namely that the patients had to be terminally ill, subject to extreme suffering but mentally competent. A second independent medical practitioner would have to confirm the diagnosis and the findings also had to be recorded in writing. The request must therefore be based on an informed and well considered decision and the patient had to make this request repeatedly. In this context the authors say that from a constitutional perspective, the Law Commission proposal does seem to strike a proper balance between the State’s duty to protect life and the person’s right (derived from the rights to physical and psychological integrity and to dignity) to end his or her life.” Page 16.

“‘But the right to life was included in the Constitution not simply to enshrine the right to existence. It is not life as mere organic matter that the Constitution cherishes, nut the right to human life; the right to share in the experience of humanity . . . The right to life, thus understood, incorporates the right to dignity. So the right to dignity and to life are intertwined. The right to life is more than existence, it is a right to be treated as a human being with dignity: without dignity, human life is substantially diminished. Without life, there cannot be dignity.’ I respectfully agree with those views. I may also add that I agree with the warning that any pious uncoupling of moral concern from the reality of human and animal suffering has caused tremendous harm to mankind throughout the centuries.” Page 16.

“The Commission said that a dying person is still a living person, and one must not forget that and he is entitled to the rights of a living person. Their draft proposals, in their view, balance the rights of patients, providers and the State. Another aspect is that of personal autonomy. The irony is, they say, that we are told from childhood to take responsibility for our lives but when faced with death we are told we may not be responsible for our own passing. There are many other ironic considerations in this context. One can choose one’s education, one’s career, one can decide to get married, one can live according to a lifestyle of one’s choice, one can consent to medical treatment or one can refuse it, one can have children and one can abort children, one can practice birth control, and one can die on the battlefield for one’s country. But one cannot decide how to die. In this context the Commission says, and I agree with it, that belief or moral doubts of third parties is not the main point in this context at all. The choice of a patient such as the present, is consistent with an open and democratic society and its values and norms as expressed in the Bill of Rights. There is of course no duty to live, and a person can waive his right to life.” Page 19.